Oregon Department of Environmental Quality Clean Fill Determinations Materials Management 700 NE Multnomah St. Suite 600 Portland, OR 97232 Phone: 503-229-5696 800-452-4011 Fax: 503-229-5850 Contact: Heather Kuoppamaki [email protected]ate.or.us www.oregon.gov/DEQ DEQ is a leader in restoring, maintaining and enhancing the quality of Oregon’s air, land and water.
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Clean Fill Determinations Library/IMDcleanfill.pdfClean fill – As defined in DEQ regulations, clean fill means “material consisting of soil, rock, concrete, brick, building block,
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Oregon Department of Environmental Quality
Clean Fill Determinations
Materials Management 700 NE Multnomah St. Suite 600 Portland, OR 97232 Phone: 503-229-5696 800-452-4011 Fax: 503-229-5850 Contact: Heather Kuoppamaki [email protected] www.oregon.gov/DEQ
DEQ is a leader in restoring, maintaining and enhancing the quality of Oregon’s air, land and water.
Documents can be provided upon request in an alternate format for individuals with disabilities or in a language other than English for people with limited English skills. To request a document in another format or language, call DEQ in Portland at 503-229-5696, or toll-free in Oregon at 1-800-452-4011, ext. 5696; or email [email protected].
DisclaimerThis directive is intended solely as guidance for DEQ employees. It does not constitute
rulemaking by the Environmental Quality Commission and may not be relied upon to create an
enforceable right or benefit, substantive or procedural, enforceable at law or in equity, by any
person. With written managerial approval, DEQ employees may deviate from this directive.DEQ anticipates revising this directive from time to time as conditions warrant.
Record of Revisions to IMD ................................................................................................ 10
Tables: Table 1 - Province specific and background metals Clean Fill Screening Levels Table 2 - Clean fill screening levels for organics and other selected constituents Figures: Figure 1 – Physiographic Provinces of Oregon Figure 2 – Clean Fill Evaluation Flow Chart
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Intent/Purpose/Statement of Need DEQ often receives requests to determine or confirm whether solid waste qualifies as clean fill. Oregon Administrative Rules define clean fill and allow DEQ to exempt clean fill from regulation as solid waste in many instances. It is important to note that clean fill that is mixed with solid waste is considered to be solid waste. This directive describes the screening criteria DEQ Materials Management staff uses to evaluate whether material meets DEQ’s definition of clean fill for purposes of reuse or disposal.
Applicability DEQ Materials Management staff are to use this Internal Management Directive to determine whether a waste material is clean fill or needs to be regulated as a solid waste.
Summary This directive lays out a process and provides screening values that DEQ Materials Management staff should use to prepare and review clean fill determinations.
Section 7 of this directive describes the process that DEQ Materials Management staff will use to make clean fill determinations. Section 8 provides information on how the clean fill screening levels were determined, and information on how and when the screening levels can be updated. Tables 1 and 2 provide clean fill screening levels.
Background and Definitions Clean fill – As defined in DEQ regulations, clean fill means “material consisting of soil, rock, concrete, brick, building block, tile or asphalt paving, which do not contain contaminants that could adversely impact the waters of the state or public health.” Clean fill does not include “putrescible wastes, construction and demolition wastes and industrial solid wastes.” [OAR 340-093-0030(18)]. This definition is clarified in the following subsections of the regulations:
Asphalt paving means “asphalt which has been applied to the land to form a street, road, path, parking lot, highway, or similar paved surface and that is weathered, consolidated, and does not contain visual evidence of fresh oil.” [OAR 340-093-0030(9)].
Clean fill that has been separated from construction and demolition waste is considered clean fill [OAR 340-093-0030(26)].
Clean fill land disposal sites – DEQ’s Materials Management Program does not regulate clean fill land disposal sites that are managed correctly. If solid waste is accepted at such a clean fill land disposal site, the facility is then subject to permit requirements and possible enforcement action by DEQ. This is stated in the following regulations:
A disposal site does not include a site that is used by the owner or person in control of the premises to dispose of soil, rock, concrete or other similar non-decomposable clean fill material, unless the site is used by the public either directly or through a collection service [OAR 340-093-0030(38)].
A person owning or controlling a land disposal site used exclusively for the disposal of clean fill may be exempt from DEQ solid waste permitting requirements. Clean fill still must be managed so that, when placed or disposed, it will not create an adverse impact on groundwater, surface water, or public health or safety. [OAR 340-093-0050(3)(c)].
Permit exemptions - Persons owning or controlling a land disposal site used exclusively for the disposal of clean fill, are specifically exempted from the requirements to obtain a DEQ solid waste permit. Such persons must comply with all other provisions of OAR chapter 340, divisions 93 through 97 and other applicable laws, rules, and regulations regarding solid waste disposal. The exemption does not apply if the materials have been contaminated such that the Department determines that their nature, amount or location may create an adverse impact on groundwater, surface water or public health or safety [based on OAR 340-093-0050(3)(c)]. Additional information on receiving DEQ approval at an exempt site is provided in OAR 340-093-0080:
A person wishing to obtain an exemption from the requirement to obtain a solid waste permit for disposal of an inert waste in specified locations may submit a request to the Department. The applicant must demonstrate that the waste is substantially the same as “clean fill.” The request shall include but not be limited to the following information:
(a) The exact location (including a map) at which the waste is to be disposed of and a description of the surrounding area;
(b) The monthly rate of disposal;
(c) A copy of the Safety Data Sheet (or equivalent, if a Safety Data Sheet is not available) for all applicable raw materials used at the facility generating the waste;
(d) A description of the process generating the waste and how that process fits into the overall operation of the facility;
(e) Documentation that the waste is not hazardous as defined in OAR 340, division 101. The procedure for making a hazardous waste determination is in OAR 340-102-0011;
(f) A demonstration that the waste is inert, stable, non-putrescible, and physically similar to soil, rock, concrete, brick, building block, tile, or asphalt paving;
(g) A demonstration that the waste will not discharge constituents which would adversely impact the waters of the state or public health.
Abbreviations Used in This Directive DEQ – Oregon Department of Environmental Quality
ECO SSL – EPA Ecological Soil Screening Level
EPA – United States Environmental Protection Agency
IMD – Internal Management Directive
OAR – Oregon Administration Rule
RBC – Oregon DEQ Risk Based Concentration
RSL – EPA Regional Screening Level
USGS – United States Geological Survey
VOC – Volatile Organic Compound
Updates to 2014 Directive This 2018 update makes the following changes to the clean fill IMD-
• The format is modified to meet DEQ’s IMD format guidelines.
• Modifies language to reflect rule requirements.
• Clarifies and expands some of the guidance language.
• Updates the clean fill tables to:
include EPA groundwater protection SSLs (adjusted to reflect Oregon DEQ dilution attenuation factor),
remove the DEQ chemical-specific calculation for leaching to groundwater [since these are now provided by the EPA soil screening levels (SSL)],
incorporate updated DEQ risk based concentrations (RBCs) and EPA regional screening levels (RSLs), and
include screening ecological benchmarks developed by Oak Ridge National Laboratory.
• Updates links to Oregon DEQ’s new web pages.
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• Removes lanthanum, niobium, technetium, tellurium, titanium, and tungsten from Table 1 as they are not commonly detected in soils in Oregon, and are generally not contaminants of interest at sites investigated in Oregon.
Directive 7.1. Who can make clean fill determinations 7.1.a. Generator When generators of excavated materials (or their consultants) ask how they can make their own clean fill determinations, DEQ Materials Management staff should explain that, when presented with a permit-exemption application, DEQ evaluates whether a material is clean fill according to the process outlined in this IMD.
A generator always has the option to do their own statistical analysis and make site-specific clean fill decisions based on the material generated.
7.1.b. DEQ Materials Management DEQ Materials Management staff should encourage the generators of material (or their consultants) to make their own clean fill determination based on this IMD, including the clean fill screening levels provided in Table 1 and Table 2. If generators want to use different risk assumptions or would like DEQ to review clean fill determinations and provide approval, direct them to apply for a permit exemption (OAR 340-093-0080) and pay any associated fees.
7.1.c. DEQ Cleanup If a generator is remediating a site under our Cleanup Program, DEQ Materials Management staff should involve DEQ’s project manager for the site. Under cleanup statutes, DEQ may exempt the onsite reuse of materials from regulation under solid waste statutes, provided that substantive requirements are met. [See ORS 465.315 (3) and (4)]
7.2. Placement Locations 7.2.a. Physiographic Provinces The clean fill values shown in Table 1 take into account naturally occurring concentrations of metals and metalloids in the various physiographic provinces within Oregon (Figure 1). These concentrations are compiled from DEQ Cleanup Program’s background metals technical report1. Clean fill generated in one physiographic province may not qualify as clean fill in another physiographic province with lower background metals concentrations. The material must be below the clean fill screening levels in both the province in which it is generated and the province in which it is disposed.
1 DEQ. 2013. Development of Oregon Background Metals Concentrations in Soil, Technical Report. March. https://www.oregon.gov/deq/FilterDocs/DebORbackgroundMetal.pdf
7.2.b. In-Water Locations The clean fill determination process applies only to terrestrial (upland) reuse or disposal. The Clean Water Act and associated state water quality rules, rather than the solid waste rules, govern the filling of wetlands or waters of the state.
If generators of clean fill plan to place the material in wetlands or other waters of the state, DEQ Materials Management staff should direct them to the Army Corps of Engineers and the Oregon Department of State Lands.
7.2.c. Clean Fill Land Disposal Sites If any solid wastes are be disposed of at a site that accepts clean fill, the site is no longer exempt from DEQ solid waste permitting requirements.
7.3. Clean Fill Evaluation The clean fill definition in OAR 340-093-0030 refers to material type as well as the presence of contaminants that could adversely impact waters of the state and human health. Both parts of the definition must be satisfied for the material to be considered clean fill.
(1) The material type is limited to soil, rock, concrete, brick, building block, tile or asphalt paving and does not consist of putrescible wastes, construction and demolition wastes and industrial solid wastes.
(2) The contaminants may not adversely impact waters of the state or public health. The clean fill screening level tables are based on background concentrations (for metals) and risk screening levels published by Oregon DEQ and EPA.
The steps to conduct a clean fill determination are described below. These steps are also shown in Figure 2.
7.3.a. Material description The first step in performing a clean fill determination is to check that the material meets the general material definition. To do this, determine whether the material:
• Consists of soil, rock, concrete, brick, building block, tile or asphalt paving; and, • Does not include putrescible wastes, construction and demolition wastes, or industrial
solid wastes In addition, specific material attributes should be considered. Some examples:
• Asphalt paving must be used, be weathered material (not fresh asphalt) and consist of large, intact chunks. Ground up asphalt is not clean fill.
• Concrete, brick, blocks or tile must be unpainted, unless the materials have been evaluated for hazardous constituents, and concentrations of those constituents are below clean fill screening levels.
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• If filler material used in the production of concrete, brick, building block, or tile has the potential to impact waters of the state or public health, the material is not clean fill.
Material that is determined to not be clean fill is solid waste. It may be disposed under a location-specific permit exemption, a solid waste letter authorization, or in a permitted landfill. The material also potentially may be reused under the authority of a Beneficial Use Determination.
7.3.b. Contaminants Evaluation The second step in conducting a clean fill determination is to evaluate the risk from contaminants in the material. This is based on the presence of staining or odor, known hazardous substances, and laboratory analysis of the material for contaminants of potential concern.
Staining or odor If the material appears chemically stained or has a chemical smell it is not clean fill. Chemicals that stain or produce odors indicate the material contains contaminants that could impact waters of the state or public health.
Hazardous waste If the material contains a listed or characteristic hazardous waste it is not clean fill, even if the chemical concentrations are below clean fill table values. The generator may use alternative management methods such as “contained-in” determinations2 to decide the ultimate disposal of the material.
Characterize the fill for chemical characterization DEQ Materials Management staff should determine whether applicants adequately characterized the chemical quality of fill materials.
DEQ review must ensure that the applicant proposes and conducts an adequate sampling program to characterize the material. Sampling programs should be based on an understanding of the historical site use, processes that were used at the site, spatial variability of site soils, and potential chemicals that were handled, used, or stored at the site. Sampling programs should include: how samples are collected (in-situ or ex-situ), where samples are collected to obtain representative results, types of samples collected (discrete or composite), the number of samples collected, and the constituents the samples are being analyzed for. The sampling program should depend on the size, condition, spatial variability of the soils, and history of the area the generator will excavate (or has excavated).
Because designing a sampling program to collect representative data for heterogeneous materials is potentially complex, DEQ staff should refer generators to sampling guidance such as EPA
(1986)3, EPA (2002)4, ITRC (2012)5 or to an experienced consultant when asked “how many samples should I collect?” during the pre-application period.
Examples of site considerations:
An applicant would need to collect fewer samples along a long stretch of highway through a single land use (such as agricultural fields with similar crops) than in areas where land use changes frequently.
Materials from agricultural lands should be tested for metals and pesticides/herbicides at a minimum. Materials from a facility whose history is uncertain may require testing for a larger list of analytes. Historical site information may be available in an environmental site assessment conducted in accordance with standard practices (for instance, ASTM E1903)6.
If the material is sediment that is being dredged and will be placed upland, DEQ Materials Management staff should work with DEQ Water Quality staff to determine if sampling done for the 401 water quality certification or dredging permits is sufficient to adequately characterize the sediment that will be placed upland.
7.3.c. Compare chemical concentrations to clean fill screening levels Once an appropriate sampling and analysis program has been completed, the results should be compared to clean fill screening levels. These levels are provided in Tables 1 and 2. When reviewing the results, make sure the laboratory method detection limit (MDL) is lower than the screening table value.
If the contaminant concentrations in the material do not exceed clean fill screening levels defined in the tables, the material is clean fill, provided the other criteria described in this IMD are also met, such as absence of staining or odor.
Note that the material may be clean fill even if there are some exceedances of these screening levels. For instance, if an appropriate statistical analysis7 demonstrates that the concentration of the contaminants are very close to clean fill screening values, DEQ may determine that the material can be considered to be clean fill in certain cases.
If a clean fill determination cannot be made, the party may contact DEQ to discuss other options, such as a permit exemption, disposal under a solid waste letter authorization, and disposal at a permitted landfill.
3 EPA, 1986. Test Methods for Evaluating Solid Waste, Physical/Chemical Methods (SW-846), Chapter 9, https://www.epa.gov/sites/production/files/2015-10/documents/chap9_0.pdf 4 EPA, 2002. Guidance on Choosing a Sampling Design for Environmental Data Collection, EPA QA/G-5S. https://www.epa.gov/sites/production/files/2015-06/documents/g5s-final.pdf 5 ITRC, 2012. Incremental Sampling Methodology, Technical and Regulatory Guidance. February. https://www.itrcweb.org/ism-1/pdfs/ISM-1_021512_Final.pdf 6 ASTM, 2011. Standard Practice for Environmental Site Assessments: Phase II Environmental Site Assessment Process, E1903-11. http://www.astm.org/Standards/E1903.htm 7Calculating a 90% Upper Confidence Limit is usually an appropriate statistical method. https://www.epa.gov/land-research/proucl-software
8.1. Table 1 The values in Table 1 are based on the following: • DEQ’s technical report on background metals concentrations in soil8 • DEQ and EPA ecological screening levels9,10 • Ecological screening benchmarks developed by Oak Ridge National Laboratory11 • DEQ RBCs for residential soils12 • EPA RSLs for residential soils13 • Calculations based on USGS data14 In the case of background metals concentrations exceeding human health or ecological screening values, the background metal values are shown. Otherwise, the lowest of human or ecological screening values are used. In the case of metals for which background concentration levels are not available, DEQ used data compiled by USGS to calculate an estimated background value. DEQ used ProUCL to calculate a nonparametric 95% Upper Prediction Limit. The background concentration of lead for the Portland Basin appears to include anthropogenic influences (it is 79 mg/kg compared to no more than about 36 mg/kg in the rest of the state). Therefore, DEQ used the background lead concentration from the South Willamette Basin province as a background concentration for lead (28 mg/kg) for the Portland Basin.
8.2. Table 2 Values in Table 2 are based on the lowest of the following: • Residential soil concentrations from DEQ’s Risk-Based Decision Making table • EPA’s residential soil Regional Screening Level
8 DEQ. 2013. Development of Oregon Background Metals Concentrations in Soil, Technical Report. March. https://www.oregon.gov/deq/FilterDocs/DebORbackgroundMetal.pdf 9 DEQ, 1998. Guidance for Ecological Risk Assessment: Levels I, II, III, IV. April. https://www.oregon.gov/deq/FilterDocs/GuidanceEcologicalRisk.pdf 10 EPA, Interim Ecological Soil Screening Level Documents. Website accessed September 6, 2018: https://www.epa.gov/chemical-research/interim-ecological-soil-screening-level-documents 11 Oak Ridge National Laboratory, https://www.lanl.gov/environment/protection/eco-risk-assessment.php 12 DEQ, 2018. Risk-Based Concentrations for Individual Chemicals. May. https://www.oregon.gov/deq/FilterDocs/RBDMTable.pdf 13 EPA, 2018. Regional Screening Levels (RSLs) – Generic Tables. May. http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/index.htm 14 USGS, 2013. Geochemical and Mineralogical Data for Soils of the Conterminous United States. https://pubs.usgs.gov/ds/801/pdf/ds801.pdf
• EPA’s risk-based soil screening levels (SSL) for protection of groundwater, multiplied by 60. EPA uses a dilution attenuation factor (DAF) of 1 in the calculation of their SSLs; DEQ uses a default DAF of 60. Therefore the EPA SSL is multiplied by 60 to be consistent with DEQ methodology.
• For chemicals where DEQ and EPA have both calculated a screening level for groundwater protection, the DEQ level is used.
• DEQ’s Ecological Screening Level Values • EPA’s Ecological Soil Screening Levels • Ecological screening benchmarks developed by Oak Ridge National Laboratory15
8.3. Modifications If any of the references screening levels are updated and the clean fill guidance has not been updated to reflect the new screening levels, generators can calculate their own, updated, clean fill screening levels based on the methods discussed above.
Review Schedule This Directive and its referenced clean fill screening tables should be reviewed and updated when DEQ or EPA risk-based screening levels change.
15 Oak Ridge National Laboratory, https://www.lanl.gov/environment/protection/eco-risk-assessment.php
Last updated by Heather Kuoppamaki, DEQ-NWR, on June 17, 2019
Table 1 - Clean fill screening levels for province specific and background metals. All concentrations in mg/kg
NotePortland Basin
a - Table 4, Development of Oregon Background Metals Concentrations in Soil, Technical Report, DEQ (2013), https://www.oregon.gov/deq/FilterDocs/DebORbackgroundMetal.pdf. Background concentrations (a or d), when available, are used for the clean fill value. When background concentrations are not available, risk screening values are used.b - 95% Upper Prediction Limit calculated using USGS data for Oregon, Smith, D.B., Cannon, W.F., Woodruff, L.G., Solano, Federico, Kilburn, J.E., and Fey, D.L., 2013, Geochemical and mineralogical data for soils of the conterminous United States: U.S. Geological Survey Data Series 801, 19 p., http://pubs.usgs.gov/ds/801/c - Table 1, Guidance for Ecological Risk Assessment, Level II Screening Level Values, DEQ (2001), https://www.oregon.gov/deq/FilterDocs/GuidanceEcologicalRisk.pdf. Only used if ecotoxicological benchmarks from Oak Ridge National Laboratory are not available.
Blue Mountains
Owyhee Uplands
d - Ecotoxicological screening benchmarks developed by Oak Ridge National Laboratory: https://www.lanl.gov/environment/protection/eco-risk-assessment.php e - Regional Screening Levels, EPA (May 2018), Residential soil. http://www.epa.gov/reg3hwmd/risk/human/rb-concentration_table/index.htm* - Province boundaries are presented in Figure 1
** - The background concentration of lead for the Portland Basin appears to include anthropogenic influences (it is 79 mg/kg compared to no more than about 36 mg/kg in the rest of the state). Therefore, DEQ used the background lead concentration from the South Willamette Basin province as a background concentration for lead for the Portland Basin.
Last updated by Heather Kuoppamaki, DEQ-NWR, on June 17, 2019
f - Ecological Soil Screening Levels, EPA (2005, 2007), http://www.epa.gov/ecotox/ecossl/g - Ecotoxicological screening benchmarks developed by Oak Ridge National Laboratory: https://www.lanl.gov/environment/protection/eco-risk-assessment.php
d - Risk Based Concentrations, DEQ (May 2018), Leaching to groundwater. e - Table 1, Guidance for Ecological Risk Assessment, Level II Screening Level Values, DEQ (2001), https://www.oregon.gov/deq/FilterDocs/GuidanceEcologicalRisk.pdf
c - Risk Based Concentrations, DEQ (May 2018), Residential soil. https://www.oregon.gov/deq/FilterDocs/RBDMTable.pdf